An Act concerning treatment for drug and alcohol dependent
persons and amending N.J.S.2C:35-14.

Be It Enacted by the Senate and General Assembly of the State of New Jersey:

1. N.J.S.2C:35-14 is
amended to read as follows:

2C:35-14. Rehabilitation
Program for Drug and Alcohol Dependent Persons Subject to a Presumption of
Incarceration or a Mandatory Minimum Period of Parole Ineligibility; Criteria
for Imposing Special Probation; Ineligible Offenders; Prosecutorial Objections;
Commitment to Residential Treatment Facilities or Participation in a
Nonresidential Treatment Program; Presumption of Revocation; Brief Incarceration
in Lieu of Permanent Revocation.

a. Any person who is
ineligible for probation due to a conviction for a crime which is subject to a
presumption of incarceration or a mandatory minimum period of parole
ineligibility may be sentenced to a term of special probation in accordance
with this section, and may not apply for drug and alcohol treatment pursuant to
N.J.S.2C:45-1. Nothing in this section shall be construed to prohibit a person
who is eligible for probation in accordance with N.J.S.2C:45-1 due to a
conviction for an offense which is not subject to a presumption of
incarceration or a mandatory minimum period of parole ineligibility from
applying for drug or alcohol treatment as a condition of probation pursuant to
N.J.S.2C:45-1. Notwithstanding the presumption of incarceration pursuant to
the provisions of subsection d. of N.J.S.2C:44-1, and except as provided in
subsection c. of this section, whenever a drug or alcohol dependent person who
is subject to sentencing under this section is convicted of or adjudicated
delinquent for an offense, other than one described in subsection b. of this
section, the court, upon notice to the prosecutor, may, on motion of the
person, or on the court's own motion, place the person on special probation,
which shall be for a term of five years.[, provided that the court finds on the
record that]In
determining whether to place the person on special probation, the court may consider
the following factors:

(1) the [person has undergone a]results of any
professional diagnostic assessment the person has undergone to determine
whether and to what extent the person is drug or alcohol dependent and would
benefit from treatment; and

(2) whether the
person is a drug or alcohol dependent person within the meaning of N.J.S.2C:35-2
and whether the person was drug or alcohol dependent at the time of the
commission of the present offense; and

(3) whether the
present offense was committed while the person was under the influence of a
controlled dangerous substance, controlled substance analog or alcohol or was
committed to acquire property or monies in order to support the person's drug
or alcohol dependency; and

(4) whether substance
abuse treatment and monitoring will serve to benefit the person by addressing
his drug or alcohol dependency and will thereby reduce the likelihood that the
person will thereafter commit another offense; and

(5) whether the
person [did not
possess]possessed
a firearm at the time of the present offense [and
did not possess]or
possessed a firearm at the time of any pending criminal charge; and

(6) whether the
person has [not] been previously
convicted on two or more separate occasions of crimes of the first or second
degree [, other
than those listed in paragraph (7)];
or the person has [not] been previously
convicted on two or more separate occasions, where one of the offenses is a
crime of the third degree, other than crimes defined in N.J.S.2C:35-10, and one
of the offenses is a crime of the first or second degree; and

(7) [the person has not been previously convicted
or adjudicated delinquent for, and does not have a pending charge of murder,
aggravated manslaughter, manslaughter, robbery, kidnapping, aggravated assault,
aggravated sexual assault or sexual assault, or a similar crime under the laws
of any other state or the United States; and](deleted by amendment, P.L. , c. (C. ) pending before the
Legislature as this bill).

(8) whether a suitable
treatment facility licensed and approved by the Division of Addiction Services
in the Department of Human Services is able and has agreed to provide
appropriate treatment services in accordance with the requirements of this
section; and

(9) whether[no] danger to the community
will result from the person being placed on special probation pursuant to this
section.

Notwithstanding any
provision of this section or any other law to the contrary, the court shall not
place on special probation any person who has been previously convicted or
adjudicated delinquent for, or has a pending charge of murder, aggravated
manslaughter, manslaughter, robbery, kidnapping, aggravated assault, aggravated
sexual assault or sexual assault, or a similar crime under the laws of any
other state or the United States.

In determining whether to
sentence the person pursuant to this section, the court shall consider all
relevant circumstances, and shall take judicial notice of any evidence,
testimony or information adduced at the trial, plea hearing or other court
proceedings, and shall also consider the presentence report and the results of [the]any professional
diagnostic assessment to determine whether and to what extent the person is
drug or alcohol dependent and would benefit from treatment. The court shall
make all findings relevant to its determination on the record.

As a condition of special
probation, the court shall order the person to enter a residential treatment
program at a facility licensed and approved by the Division of Addiction
Services in the Department of Human Services or a program of nonresidential
treatment by a licensed and approved treatment provider, to comply with program
rules and the requirements of the course of treatment, to cooperate fully with
the treatment provider, and to comply with such other reasonable terms and
conditions as may be required by the court or by law, pursuant to
N.J.S.2C:45-1, and which shall include periodic urine testing for drug or
alcohol usage throughout the period of special probation. In determining
whether to order the person to participate in a nonresidential rather than a
residential treatment program, the court shall follow the procedure set forth
in subsection j. of this section. Subject to the requirements of subsection d.
of this section, the conditions of special probation may include different
methods and levels of community-based or residential supervision.

b. A person shall not be
eligible for special probation pursuant to this section if the person is
convicted of or adjudicated delinquent for:

(1) a crime of the first
degree;

(2) a crime of the first or
second degree enumerated in subsection d. of section 2 of P.L.1997, c.117
(C.2C:43-7.2);

(3) a crime, other than that
defined in section 1 of P.L.1987, c.101 (C.2C:35-7), for which a mandatory
minimum period of incarceration is prescribed under chapter 35 of this Title or
any other law; or

(4) an offense that involved
the distribution or the conspiracy or attempt to distribute a controlled
dangerous substance or controlled substance analog to a juvenile near or on
school property.

c. A person who is subject
to sentencing under this section in accordance with subsection a. shall not be
eligible for a sentence of special probation pursuant to this section if:

(1) the person has been:

(a) convicted of
or adjudicated delinquent for an offense under section 1 of P.L.1987, c.101
(C.2C:35-7), subsection b. of section 1 of P.L.1997, c.185 (C.2C:35-4.1), or
any crime for which there exists a presumption of imprisonment pursuant to
subsection d. of N.J.S.2C:44-1 or any other statute; or

(b) previously
convicted of an offense under subsection a. of N.J.S.2C:35-5 or a similar
offense under any other law of this State, any other state or the United States;
[or

(c) previously convicted on
two or more separate occasions of crimes of the third degree, other than crimes
defined in N.J.S.2C:35-10;]
and

(2) the prosecutor objects
to the person being placed on special probation. The court shall not place a
person on special probation over the prosecutor's objection except upon a
finding by the court of a gross and patent abuse of prosecutorial discretion.
If the court makes a finding of a gross and patent abuse of prosecutorial
discretion and imposes a sentence of special probation notwithstanding the
objection of the prosecutor, the sentence of special probation imposed pursuant
to this section shall not become final for 10 days in order to permit the
appeal of such sentence by the prosecution.

d. Except as otherwise
provided in subsection j. of this section, a person convicted of or adjudicated
delinquent for a crime of the second degree or of a violation of section 1 of
P.L.1987, c.101 (C.2C:35-7), or who previously has been convicted of or
adjudicated delinquent for an offense under subsection a. of N.J.S.2C:35-5 or a
similar offense under any other law of this State, any other state or the
United States, who is placed on special probation under this section shall be
committed to the custody of a residential treatment facility licensed and
approved by the Division of Addiction Services in the Department of Human
Services. Subject to the authority of the court to temporarily suspend
imposition of all or any portion of the term of commitment to a residential
treatment facility pursuant to subsection j. of this section, the person shall
be committed to the residential treatment facility immediately, unless the
facility cannot accommodate the person, in which case the person shall be
incarcerated to await commitment to the residential treatment facility. The
term of such commitment shall be for a minimum of six months, or until the
court, upon recommendation of the treatment provider, determines that the
person has successfully completed the residential treatment program, whichever
is later, except that no person shall remain in the custody of a residential
treatment facility pursuant to this section for a period in excess of five
years. Upon successful completion of the required residential treatment
program, the person shall complete the period of special probation, as
authorized by subsection a. of this section, with credit for time served for
any imprisonment served as a condition of probation and credit for each day
during which the person satisfactorily complied with the terms and conditions
of special probation while committed pursuant to this section to a residential
treatment facility. Except as otherwise provided in subsection l. of this
section, the person shall not be eligible for early discharge of special
probation pursuant to N.J.S.2C:45-2, or any other provision of the law. The
court, in determining the number of credits for time spent in residential
treatment, shall consider the recommendations of the treatment provider. A
person placed into a residential treatment facility pursuant to this section
shall be deemed to be subject to official detention for the purposes of
N.J.S.2C:29-5 (escape).

e. The probation
department or other appropriate agency designated by the court to monitor or
supervise the person's special probation shall report periodically to the court
as to the person's progress in treatment and compliance with court-imposed
terms and conditions. The treatment provider shall promptly report to the
probation department or other appropriate agency all significant failures by
the person to comply with any court imposed term or condition of special
probation or any requirements of the course of treatment, including but not
limited to a positive drug or alcohol test or the unexcused failure to attend
any session or activity, and shall immediately report any act that would constitute
an escape. The probation department or other appropriate agency shall
immediately notify the court and the prosecutor in the event that the person
refuses to submit to a periodic drug or alcohol test or for any reason
terminates his participation in the course of treatment, or commits any act
that would constitute an escape.

f. (1) Upon a first violation
of any term or condition of the special probation authorized by this section or
of any requirements of the course of treatment, the court in its discretion may
permanently revoke the person's special probation.

(2) Upon a second or
subsequent violation of any term or condition of the special probation
authorized by this section or of any requirements of the course of treatment,
the court shall, subject only to the provisions of subsection g. of this
section, permanently revoke the person's special probation unless the court
finds on the record that there is a substantial likelihood that the person will
successfully complete the treatment program if permitted to continue on special
probation, and the court is clearly convinced, considering the nature and
seriousness of the violations, that no danger to the community will result from
permitting the person to continue on special probation pursuant to this
section. The court's determination to permit the person to continue on special
probation following a second or subsequent violation pursuant to this paragraph
may be appealed by the prosecution.

(3) In making its
determination whether to revoke special probation, and whether to overcome the
presumption of revocation established in paragraph (2) of this subsection, the
court shall consider the nature and seriousness of the present infraction and
any past infractions in relation to the person's overall progress in the course
of treatment, and shall also consider the recommendations of the treatment
provider. The court shall give added weight to the treatment provider's
recommendation that the person's special probation be permanently revoked, or
to the treatment provider's opinion that the person is not amenable to
treatment or is not likely to complete the treatment program successfully.

(4) If the court permanently
revokes the person's special probation pursuant to this subsection, the court
shall impose any sentence that might have been imposed, or that would have been
required to be imposed, originally for the offense for which the person was
convicted or adjudicated delinquent. The court shall conduct a de novo review
of any aggravating and mitigating factors present at the time of both original
sentencing and resentencing. If the court determines or is required pursuant
to any other provision of this chapter or any other law to impose a term of
imprisonment, the person shall receive credit for any time served in custody
pursuant to N.J.S.2C:45-1 or while awaiting placement in a treatment facility
pursuant to this section, and for each day during which the person
satisfactorily complied with the terms and conditions of special probation
while committed pursuant to this section to a residential treatment facility.
The court, in determining the number of credits for time spent in a residential
treatment facility, shall consider the recommendations of the treatment
provider.

(5) Following a violation,
if the court permits the person to continue on special probation pursuant to
this section, the court shall order the person to comply with such additional
terms and conditions, including but not limited to more frequent drug or
alcohol testing, as are necessary to deter and promptly detect any further
violation.

(6) Notwithstanding any
other provision of this subsection, if the person at any time refuses to
undergo urine testing for drug or alcohol usage as provided in subsection a. of
this section, the court shall, subject only to the provisions of subsection g.
of this section, permanently revoke the person's special probation.
Notwithstanding any other provision of this section, if the person at any time
while committed to the custody of a residential treatment facility pursuant to
this section commits an act that would constitute an escape, the court shall
forthwith permanently revoke the person's special probation.

(7) An action for a
violation under this section may be brought by a probation officer or
prosecutor or on the court's own motion. Failure to complete successfully the
required treatment program shall constitute a violation of the person's special
probation. A person who fails to comply with the terms of his special
probation pursuant to this section and is thereafter sentenced to imprisonment
in accordance with this subsection shall thereafter be ineligible for entry
into the Intensive Supervision Program, provided however that this provision
shall not affect the person's eligibility for entry into the Intensive
Supervision Program for a subsequent conviction.

g. When a person on
special probation is subject to a presumption of revocation on a second or
subsequent violation pursuant to paragraph (2) of subsection f. of this
section, or when the person refuses to undergo drug or alcohol testing pursuant
to paragraph (6) of subsection f. of this section, the court may, in lieu of
permanently revoking the person's special probation, impose a term of
incarceration for a period of not less than 30 days nor more than six months,
after which the person's term of special probation pursuant to this section may
be reinstated. In determining whether to order a period of incarceration in
lieu of permanent revocation pursuant to this subsection, the court shall
consider the recommendations of the treatment provider with respect to the
likelihood that such confinement would serve to motivate the person to make
satisfactory progress in treatment once special probation is reinstated. This
disposition may occur only once with respect to any person unless the court is
clearly convinced that there are compelling and extraordinary reasons to
justify reimposing this disposition with respect to the person. Any such
determination by the court to reimpose this disposition may be appealed by the
prosecution. Nothing in this subsection shall be construed to limit the
authority of the court at any time during the period of special probation to
order a person on special probation who is not subject to a presumption of revocation
pursuant to paragraph (2) of subsection f. of this section to be incarcerated
over the course of a weekend, or for any other reasonable period of time, when
the court in its discretion determines that such incarceration would help to
motivate the person to make satisfactory progress in treatment.

h. The court, as a
condition of its order, and after considering the person's financial resources,
shall require the person to pay that portion of the costs associated with his
participation in any rehabilitation program, nonresidential treatment program
or period of residential treatment imposed pursuant to this section which, in
the opinion of the court, is consistent with the person's ability to pay,
taking into account the court's authority to order payment or reimbursement to
be made over time and in installments.

i. The court shall
impose, as a condition of the special probation, any fine, penalty, fee or
restitution applicable to the offense for which the person was convicted or
adjudicated delinquent.

j. Where the court finds
that a person has satisfied all of the eligibility criteria for special
probation and would otherwise be required to be committed to the custody of a
residential treatment facility pursuant to the provisions of subsection d. of
this section, the court may temporarily suspend imposition of all or any
portion of the term of commitment to a residential treatment facility and may
instead order the person to enter a nonresidential treatment program, provided
that the court finds on the record that:

(1) the person conducting
the diagnostic assessment required pursuant to paragraph (1) of subsection a.
of this section has recommended in writing that the proposed course of
nonresidential treatment services is clinically appropriate and adequate to
address the person's treatment needs; and

(2) no danger to the
community would result from the person participating in the proposed course of
nonresidential treatment services; and

(3) a suitable treatment
provider is able and has agreed to provide clinically appropriate
nonresidential treatment services.

If the prosecutor objects to
the court's decision to suspend the commitment of the person to a residential
treatment facility pursuant to this subsection, the sentence of special
probation imposed pursuant to this section shall not become final for ten days
in order to permit the appeal by the prosecution of the court's decision.

After a period of six months
of nonresidential treatment, if the court, considering all available
information including but not limited to the recommendation of the treatment
provider, finds that the person has made satisfactory progress in treatment and
that there is a substantial likelihood that the person will successfully
complete the nonresidential treatment program and period of special probation,
the court, on notice to the prosecutor, may permanently suspend the commitment
of the person to the custody of a residential treatment program, in which event
the special monitoring provisions set forth in subsection k. of this section
shall no longer apply.

Nothing in this subsection
shall be construed to limit the authority of the court at any time during the
term of special probation to order the person to be committed to a residential
or nonresidential treatment facility if the court determines that such
treatment is clinically appropriate and necessary to address the person's
present treatment needs.

k. (1) When the court
temporarily suspends the commitment of the person to a residential treatment
facility pursuant to subsection j. of this section, the court shall, in
addition to ordering participation in a prescribed course of nonresidential
treatment and any other appropriate terms or conditions authorized or required
by law, order the person to undergo urine testing for drug or alcohol use not
less than once per week unless otherwise ordered by the court. The
court-ordered testing shall be conducted by the probation department or the
treatment provider. The results of all tests shall be reported promptly to the
court and to the prosecutor. In addition, the court shall impose appropriate
curfews or other restrictions on the person's movements, and may order the
person to wear electronic monitoring devices to enforce such curfews or other
restrictions as a condition of special probation.

(2) The probation department
or other appropriate agency shall immediately notify the court and the
prosecutor in the event that the person fails or refuses to submit to a drug or
alcohol test, knowingly defrauds the administration of a drug test, terminates
his participation in the course of treatment, or commits any act that would
constitute absconding from parole. If the person at any time while entered in
a nonresidential treatment program pursuant to subsection j. of this section
knowingly defrauds the administration of a drug test, goes into hiding or
leaves the State with a purpose of avoiding supervision, the court shall
permanently revoke the person's special probation.

l. If the court finds
that the person has made exemplary progress in the course of treatment, the
court may, upon recommendation of the person's supervising probation officer or
on the court's own motion, and upon notice to the prosecutor, grant early
discharge from a term of special probation provided that the person: (1) has
satisfactorily completed the treatment program ordered by the court; (2) has
served at least two years of special probation; (3) did not commit a
substantial violation of any term or condition of special probation, including
but not limited to a positive urine test, within the preceding 12 months; and
(4) is not likely to relapse or commit an offense if probation supervision and
related services are discontinued.

(cf: P.L.2008, c.15, s.1)

2. This act shall take effect immediately.

STATEMENT

This bill would modify the criteria
for admission into special probation pursuant to N.J.S.2C:35-14, which is
commonly referred to as the “drug court” program, to allow more persons to have
access to the program. Currently, a person must satisfy certain eligibility
criteria to be placed on special probation. This bill would allow courts
greater discretion to place a person on special probation by making the
eligibility criteria permissive, instead of mandatory, for the court. A person
who does not meet all of the eligibility criteria but who would nevertheless
benefit from participation in the program would thus be eligible for special
probation.

Under the current law, a
person may only be admitted into special probation if the person was convicted
of a crime with a presumption of incarceration or minimum period of parole
ineligibility and if the person also meets certain eligibility criteria. The
court must find on the record that: 1) the person must have undergone a
professional diagnostic assessment to determine whether and to what extent the
person is drug or alcohol dependent; 2) the person must have been drug or
alcohol dependent at time the offense was committed; 3) the person was under
the influence of a controlled dangerous substance or alcohol at the time the
person committed the offense or the person committed the offense to support the
person’s drug or alcohol dependency; 4) treatment and monitoring will serve to
benefit the person by addressing the person’s drug or alcohol dependency and
will reduce the likelihood that the person will commit another offense; 5) the
person did not possess a firearm at the time of the present offense or at the
time of any pending criminal charge; 6) the person does not have two or more
prior convictions for crimes of the first or second degree, or two or more
convictions where one conviction was for a crime of the third degree, other
than possession, use, or being under the influence of a controlled dangerous
substance, and the other conviction was for a crime of the first or second
degree; 7) the person has no prior convictions or pending charges for murder, aggravated
manslaughter, manslaughter, robbery, kidnapping, aggravated assault, aggravated
sexual assault, sexual assault, or a similar crime under any state or federal
law; 8) a suitable treatment facility is able to and has agreed to provide
treatment services; and 9) no danger to community will result from the person
being placed on special probation.

Under the bill, in determining
whether to place the person on special probation the court may consider these
factors; the bill eliminates the requirement that the court must make these
findings in order to place the person on special probation.

The bill would not change the
prohibition against admission to special probation for people who have a prior
conviction or pending charges for murder, aggravated manslaughter,
manslaughter, robbery, kidnapping, aggravated assault, aggravated sexual
assault, sexual assault, or a similar crime.

Additionally, this bill would
remove the provision that permits the prosecutor to object to special probation
if the person has two or more separate prior convictions for crimes of the
third degree. Under current law, the prosecutor may object to the person being
placed on special probation if: 1) the present conviction or adjudication of
delinquency is for an offense involving distribution of a controlled dangerous
substance on or near school property, placing a booby trap on property used to
manufacture, distribute, or dispense a controlled dangerous substance, or any
crime for which there exists a presumption of imprisonment; 2) the person was
previously convicted of or adjudicated delinquent for an offense involving the
manufacture, distribution, or dispensation of a controlled dangerous substance;
or 3) the person was previously convicted on two or more separate occasions of
crimes of the third degree, other than crimes involving possession, use, or
being under the influence of a controlled dangerous substance. A court may not
place a person on special probation over the prosecutor's objection except upon
a finding of a gross and patent abuse of prosecutorial discretion, which finding
is appealable. Under this bill, two or more prior convictions for a crime of
the third degree would no longer constitute grounds for the prosecutor to
object to special probation.

This bill would not make any changes
to subsection b. of N.J.S.2C:35-14, which provides that a person is ineligible
for special probation if the offense the person has been convicted of is: 1) a
crime of the first degree; 2) a crime of the first or second degree that is
enumerated in N.J.S.A.2C:43-7.2, which is known as the “No Early Release Act;”
3) any crime involving a mandatory period of incarceration, other than
distribution of a controlled dangerous substance on or near school property; or
4) distribution, or conspiracy to or attempt to distribute a controlled
dangerous substance to a juvenile near or on school property.